Richard Glossip, who is on death row in Oklahoma, and the state's attorney general believe this handwritten note, along with additional evidence, shows prosecutors withheld evidence and violated Glossip's due process rights during his 2004 murder trial. (Court Documents)
Attorneys representing the unlikely pair told the justices — except Justice Neil Gorsuch, who recused himself from the case — that prosecutors in Glossip's 2004 trial violated his due process rights by withholding information about the mental health and psychiatric treatment of their star witness, Justin Sneed, who testified that Glossip hired him to kill Van Treese. The prosecutors also allegedly encouraged Sneed to change his testimony so it wouldn't contradict the medical examiner's report and failed to disclose evidence the defense could've used to support Glossip's innocence claim.
"Attorney General Drummond did not confess error here lightly," Drummond's attorney, Paul D. Clement of Clement & Murphy PLLC, said. "But, after commissioning an independent review, he reluctantly reached the conclusion that violations by the state's own prosecutors obliged him to confess error and waive procedural obstacles" to Glossip's request for a new trial.
That independent investigation was completed in early April 2023 and found that state prosecutors had deprived Glossip of a fair trial by violating the Supreme Court's rulings in Brady v. Maryland
, which requires prosecutors to turn over exculpatory evidence, and Napue v. Illinois , which prohibits prosecutors from knowingly eliciting false testimony.Justice Thomas, who was unusually talkative Wednesday, took issue with the thoroughness of the independent review, noting the former prosecutors, Connie Smothermon and Gary Ackley, claimed they were never interviewed during the investigation.
In a letter attached to the Van Treese family's amicus brief urging the court to uphold Glossip's conviction, the attorneys claim they only talked briefly to the former state district attorney who led the probe and never discussed the misconduct allegations. Smothermon added she was never questioned about the meaning of a handwritten note of hers that allegedly shows, alongside other evidence, that she withheld information about Sneed's bipolar diagnosis and lithium prescription from Glossip's defense team.
Clement and WilmerHale partner Seth P. Waxman, who is representing Glossip, both argued that the court should ignore the letter because it wasn't a sworn declaration and represented new information the Oklahoma Court of Criminal Appeals didn't review. They also contend the independent investigation, and an earlier Legislature-initiated review of Glossip's case in 2021, include either interviews with or affidavits from Smothermon and Ackley.
"If they were using a note of yours from 20 years ago, wouldn't you expect them to call you and have an in-depth investigation as to what your note meant?" Justice Thomas asked Clement.
"I mean, I would expect that, Justice Thomas, and —" Clement started to say.
"Well, shouldn't these two prosecutors? It seems as though their reputations are being impugned, and according to them, they did not receive an opportunity to explain in depth," Justice Thomas continued.
"Justice Thomas, that's hard to square with the record here," Clement said, pointing to the two investigations.
Waxman said the letter attached to the Van Treese family's July brief provides yet another, inconsistent explanation for Smothermon's actions, and that the new statement "at the very last minute for the very first time in a merits amicus brief before this court" deserves little respect.
When Justice Thomas asked Quinn Emanuel Urquhart & Sullivan LLP partner Christopher G. Michel, who the justices appointed to defend the Oklahoma Court of Criminal Appeals' decision, about Smothermon's and Ackley's claims, Michel said it highlights the flaws in the "not particularly thorough" independent investigations into Glossip's case.
In statements made to reporters after arguments, Drummond said he understood the seriousness of his claims, but that the case record called for the confession of error. He added he believes Glossip should be retried and found guilty of some crime, but he doesn't know if the conviction will warrant the death penalty.
"I'm very respectful of our prosecutors and very respectful of district attorneys, and in the heat of any jury trial, what you may think at the time should be disclosed or not disclosed — I don't want to second guess the prosecutors," Drummond said. "I think that in the aftermath, when you review the cold record, there were errors that need to be corrected."
Justice Samuel Alito agreed during oral arguments that Drummond "read a lot into" Smothermon's handwritten note, which includes the phrases "on Lithium?" and "Dr. Trumpet?" Drummond and Glossip argue the writings help prove that prosecutors knew Sneed had been prescribed lithium for his bipolar disorder by Dr. Lawrence Trombka, the only psychiatrist who worked at the Oklahoma County jail where Sneed was held after his arrest for the murder.
"And the Van Treese family's amicus brief provides a pretty compelling counter-reading of that," Justice Alito told Waxman. "And you want us to ... just pretend it doesn't exist and read those cryptic notes the way [you] think they should be read? We shouldn't even remand for an exploration of this?"
Waxman, Clement and Michel all agreed Wednesday there would be no benefit to the Supreme Court ordering an evidentiary hearing over the allegations of due process violations and whether they warrant a new trial. Each man argued the case could clearly be resolved in their favor on the current record.
But it seemed that a majority of the justices were leaning toward ordering such a hearing.
"It's my understanding that there's never been a court determination of any of these facts," Justice Ketanji Brown Jackson said. "Justice Thomas is saying there are some disputes about what the notes mean and whatnot. So I guess I don't understand why we wouldn't, at the minimum, have some sort of requirement that a court make a finding about these things?"
In upholding Glossip's conviction, the Oklahoma Court of Criminal Appeals held that the newly revealed evidence could have been discovered earlier by Glossip's defense team through due diligence and, even if it couldn't, the alleged misconduct didn't materially affect the outcome of the trial.
Michel additionally argued that the Supreme Court couldn't review the lower court's decision, no matter how flawed they believed it to be, because it was based on a procedural bar in Oklahoma's Post-Conviction Procedure Act that prohibits post-conviction relief unless a defendant presents new claims that couldn't have been presented at a previous time "through the exercise of reasonable diligence."
The Oklahoma Court of Criminal Appeals' ruling was squarely based on that independent state law and therefore shielded from federal court review, he said.
Justice Elena Kagan challenged Michel's claim, stating the lower court's decision included "interwoven" rulings on the merits of Glossip's constitutional challenges and the state's procedural law. While she criticized the opinion as poorly written, she said it was clear that some of it was based on the merits and subject to review.
"I've read it a dozen times and I'm still not sure what each paragraph is doing exactly," she said. "But the first thing they say is, 'The state has come to us and has confessed error, and we're not going to accept that concession.'"
The Oklahoma Court of Criminal Appeals found it couldn't accept Drummond's confession of error because it was based "in law or fact." Justice Kagan asked Michel if he agreed that such a ruling was based on the claims that state prosecutors violated Glossip's federal rights, and while he agreed that was "one potential way to read the opinion," he argued the court really issued its ruling based on the state law's procedural bar.
Justice Sonia Sotomayor also had a hard time seeing the Oklahoma Court of Criminal Appeals' ruling the way Michel presented it.
"It keeps going back and forth" between federal and state law, she said. "How on earth could one reach a conclusion that the court would have done exactly what the court did if the court had a different view of the merits? I mean, everything was intertwined with everything else here."
Justice Amy Coney Barrett added it was "unusual" for the state court to not accept Drummond's confession of error and waiver of the procedural bars against Glossip's claims.
Glossip is represented by Seth P. Waxman, Catherine M.A. Carroll, Julia M. May, Zaki Anwar, Juan M. Ruiz Toro and Dylan S. Reighman of WilmerHale, Amy P. Knight, John R. Mills and Joseph J. Perkovich of Phillips Black Inc. and Donald R. Knight.
Oklahoma is represented by Paul D. Clement, Matthew D. Rowen, Joseph J. DeMott and Zachary J. Lustbader of Clement & Murphy PLLC and Gentner F. Drummond and Garry M. Gaskins II of the Oklahoma Attorney General's Office.
The judgment below was defended by Christopher G. Michel, Rachel G. Frank, Alex Van Dyke and Nicholas J. Caluda of Quinn Emanuel Urquhart & Sullivan LLP.
The case is Glossip v. Oklahoma, case number 22-7466, in the Supreme Court of the United States.
--Editing by Jay Jackson Jr.